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Case 1:09-cr-00512-LAP Document 29 Filed 02/09/11 of 42

':-EXHIBIT A

Case 1:09-cr-00512-LAP Document 29-1 Filed 02/09/11 Page 1 of 50

9411mush

1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

2 ------------------ -----------x

3 UNITED STATES OF AMERICA,

4 v.

5 ABDUWALI ABDUCHADIR MUSE,

6 Defendant.

7 ------------------------------x

Hearing

8 New York, N.Y. April 21, 2009

9 2:47 p.m.

10 Before:

11 HON. ANDREW J. PECK,

12 Magistrate Judge

13

14 APPEARANCES

15 LEV L. DASSIN Acting United States Attorney for the

16 Southern District of New York BRENDAN R. McGUIRE

17 DAVID RASKIN Assistant United States Attorneys

18 FEDERAL DEFENDERS OF NEW YORK, INC.

19 Attorneys for Defendant BY: PHILIP L. WEINSTEIN, ESQ.

20 DEIRDRE D. VON DORNUM, ESQ.

21 ALSO PRESENT: SHUKRI SHARIFF, Somali Language Interpreter

22

23

24

25

SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

1 Case 1:09-cr-00512-LAP Document 29-1 Filed 02/09/11 Page 2 of 50

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1 (In open court)

2 (Case called)

3 (Appearances noted)

4 THE COURT: Let's swear in the interpreter.

5 THE CLERK: Please state your name for the record.

6 THE INTERPRETER: Shukri Shariff.

7 (Interpreter sworn)

8 THE COURT: All right. You are a Somali interpreter?

9 THE INTERPRETER: Yes. I'm Somali interpreter.

10 THE COURT: All right. All right. Applications,

11 before we begin anything else?

12 MR. WEINSTEIN: Yes, your Honor. Let me make an

13 application and first start off by saying, the obvious point is

14 that our client has been brought into the courtroom, and we

15 are --

16 THE COURT: Let me just note that that was at your

17 request.

18 MR. WEINSTEIN: It was, and I just wanted to put on

19 the record our reason for that request is that there have been

20 secret proceedings written about in the papers and all the

21 rest. We are at the stage of establishing a relationship with

22 the client, and we want him to understand that we are his

23 attorneys and we're not doing something in secret.

24 That said, we have evidence that he is under 18. I

25 think I have mentioned to the Court that we have been in

SOUTHERN DISTRICT REPORTERS, P.C. (212) 805 0300


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1 contact with his family in Somalia, and we think that he

2 qualifies, until removed, under the juvenile delinquency law of

3 federal court. And in order to reach the point of establishing

4 that age, because the government is of the view that he is

5 older than 18, we will have his father in a hookup, as well as

6 other statements. And we would like, if he is a juvenile,

7 which we believe he is, then the proceedings should be closed

8 until the Court determines otherwise. So our request is that,

9 for purposes of the hearing and fact finding by the Court, that

10 the courtroom be closed.

11 THE COURT: Mr. McGuire?

12 MS. VON DORNUM: Your Honor, may I have just one

13 moment with Mr. Muse and the interpreter. I apologize.

14 THE COURT: Yes.

15 (Defendant and counsel conferring)

16 MS. VON DORNUM: Thank you, your Honor. I apologize.

17 THE COURT: That's quite all right.

18 Let me just note for the rather large audience that we

19 have made arrangements through our, quote-unquote, press office

20 for an overflow room in Room 850. However, because I knew

21 there was going to be this application, we have not set that

22 room up so we don't have to shut it off if we go into a closed

23 courtroom proceeding. If we wind up not going to a closed

24 proceeding, then we will turn the camera on in here, and those

25 of you who don't fit comfortably here and want to go to



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1 Room 850, can go to Room 850.

2 All right. Mr. McGuire?

3 Let's just make sure, Marshals, CSOs, anyone who wants

4 to come in at this point, make room, and anyone who's sitting

5 on coats or, you know, let's make as much room as possible in

6 the courtroom for everybody. Let's just wait a second.

7 If you're coming in, gentlemen in the back, come in;

8 if you're not, don't. But don't hold up the people behind you.

9 All right. Is everyone in who wants to be? I'll

10 assume that's a yes.

11 No? Judge Berman?

12 (Pause)

13 THE COURT: We are going to give it just another

14 minute or two to fit everybody into the room.

15 All right. Marshals, CSOs, even though it's an

16 overflow, unless you tell me otherwise, judicial decision is to

17 let everyone in for now because we may then go into a closed

18 proceeding, so we're not going to set up the auxiliary viewing

19 room yet. So if there are people still out there, let's get

20 them in.

21 (Pause)

22 THE COURT: Okay. Thank you.

23 Just to summarize briefly for latecomers, even though

24 we have Mr. Muse in open court at the moment, his counsel has

25 moved to have a sealed proceeding as to whether Mr. Muse is a



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1 juvenile in terms of the statute 18 US Code Section 5031, et

2 al., and we were just about to hear and are now going to hear

3 from the government as to their position on this. If we do not

4 go to a sealed proceeding, then we will open up courtroom 850

5 for overflow to be more comfortable there.

6 Mr. McGuire?

7 MR. McGUIRE: Your Honor, first, with respect to the

8 sealing request by the defense, the government objects to that.

9 The government has requested from the defense, but has not been

10 furnished with, any authority for the proposition that this

11 type of proceeding should be sealed. As your Honor's deputy

12 just read out the name of the defendant, and the purpose for

13 sealing in this context would be to protect the name and

14 identity of the defendant, it appears that that bell has been

15 rung at this point and that any proceedings that the defense

16 would like to have with respect to age can now be done in full

17 view of the public.

18 THE COURT: This whole thing strikes me as somewhat

19 the tail chasing the dog or something else, because it was

20 announced on the radio yesterday, possibly even before that,

21 that Mr. Muse would be presented in this court yesterday or

22 today. When I showed up this morning at 8:30, the satellite

23 trucks were already blocking all of Worth Street. And I gave

24 the defense the option, as we started calling this proceeding,

25 of doing it as US against John Doe and not having the defendant



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1 appear while the arguments were being made as to sealing or

2 not. Having gotten this pregnant, so to speak, I'm not sure

3 that it pays, just on the age proceeding, to seal the

4 courtroom.

5 So, Mr. Weinstein, if you'd like to address that

6 further.

7 The other thing I should, before you do that, note for

8 the record is a fax that was received in my chambers that says:

9 "Dear Judge Peck:

10 "Members of the press are intending to cover the

11 presentment of the accused Somali pirate, which we believe is a

12 case of global public interest.

13 "We have noted today in press reports that the man's

14 family claims he is 16 years old, which is younger than the

15 government has been quoted as saying. In an abundance of

16 caution, we ask that if any attempt is made by any party to

17 close the hearing (for example, on grounds he is a juvenile),

18 the press be first given an opportunity to be heard and to

19 object. We believe that, absent concrete proof that he is a

20 juvenile, it would be wrong to seal the hearing, and we would

21 want to be present at any hearing where the question of his age

22 is debated in advance of a sealing.

23 "We also ask that if any closed meeting has already

24 been held on this issue that the Court summarize what occurred

25 and also release a transcript. We also ask not to be kept out



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1 of the courtroom until this issue is resolved and then only be

2 told afterwards that a sealed proceeding occurred.

3 "We are happy to discuss this further and again want

4 to make clear that we object to any closure of the hearing."

5 And it's signed Ben Weiser, New York Times; Larry

6 Neumeister, Associated Press; Chad Bray, Dow Jones; Bruce

7 Golding, New York Post; Mark Hamblett, New York Law Journal;

8 Christine Kearney, Reuters; and John Riley, Newsday.

9 MR. WEINSTEIN: We're going to just divide this into

10 two. So first let me respond to the Court's comment, the bell

11 had already been rung. Certainly it cannot be the law that the

12 government can defeat juvenile privacy by making public

13 announcements. So I think the fact that that's been done is

14 neither a waiver nor anything else. Otherwise, the government

15 would always be encouraged to do that.

16 THE COURT: I understand that. I'm just saying, as a

17 practical matter, you have your arguments preserved for when

18 this case is indicted, if it is indicted, to take before the

19 district judge or, even before that, to move to dismiss on the

20 ground of prosecutorial misconduct --

21 MR. WEINSTEIN: Well, there's more than that.

22 THE COURT: or whatever it may be, but it hardly

23 seems that the purpose of the statute, which is to protect the

24 identity of the juvenile, is serving any purpose anymore.

25 MR. WEINSTEIN: Ms. Von Dornum is going to respond to



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1 that.

2 THE COURT: All right. Ms. Von Dornum?

3 MS. VON DORNUM: Your Honor, I know you've recently

4 reviewed the statute, as have I, as has Mr. Weinstein. I think

5 in fact it goes far beyond protecting the identity. That's

6 clearly what 5038(e) refers to, but as the Court is aware, what

7 5038(a), (b) and (c) refer to is a far broader protection. And

8 as you previously noted, we did consent to Mr. Muse's

9 appearance here, in large part, as Mr. Weinstein noted, so that

10 he would understand what was happening and be able to have some

11 trust in us, which, everyone can understand, he might not at

12 this stage in his proceedings. But what the statute says is

13 that the record shall be safeguarded from disclosure to

14 unauthorized persons.

15 THE COURT: Once he is a juvenile, which we don't know

16 yet.

17 MS. VON DORNUM: Right. But I think that the juvenile

18 question is of course inherent in all of this, and to say we

19 can first discuss whether or not he's a juvenile and then, if

20 so, we'll seal everything, would defeat the purpose of that,

21 particularly because I understand the government will rely in

22 this proceeding on investigatory statements that would not be

23 made public were you to decide that he was a juvenile. And so

24 by disclosing those to the press and everyone else in the

25 course of this proceeding, we could not then undo that. And it



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1 goes far beyond his name and identitYi it goes to the nature of

2 the investigation and the charges against him. And as you

3 know, this is not -- my concern today is not the First

4 Amendment, it's the due process clause and his Fifth Amendment

5 rights. And so for the government to put on the record, as it

6 has a right to in order to try to prove that he is of age of

7 majority, investigatory statements would damage it to the

8 extent that he could not be protected. I don't think his name

9 and identity are clearly the primary concern. It's the

10 investigation. It is going to be a highly contested case, and

11 we believe there's a lot more to it, but we do not want that to

12 come out before you've had a chance to hear the evidence on

13 whether or not he is a juvenile.

14 THE COURT: All right. Let me hear any of the members

15 of the press. I know you're not maybe you are here with

16 your lawyers by now. But if anyone from the press has anything

17 further to add to the April 21st Weiser, et al. letter, let

18 me hear from you.

19 MR. WEISER: I'm Ben Weiser from the Times. I just

20 would like to add that even if it is found he is a juvenile, we

21 believe the proceedings should be public because of the

22 seriousness of the crime and the high public interest in the

23 case.

24 THE COURT: That's an argument that you have to make

25 to Congress because if he is a juvenile, Congress has decreed,



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1 in passing 18 US Code 5031 through 5038, and possibly even a

2 few sections more, that juvenile proceedings are sealed

3 regardless of how serious the juvenile delinquency is, which,

4 if it were a crime, would be a crime of much information,

5 notice, etc.

6 Can you give me a proffer, Mr. Weinstein, of what your

7 evidence will show. Since I think it sounds like you're

8 concerned about the government's statements, before I decide

9 whether to seal or not, I'd like to know if there is going to

10 be any bona fide argument that he is a juvenile.

11 MR. WEINSTEIN: Yes. We have spoken to his father in

12 Somalia. We've alerted him --

13 THE COURT: I'm sorry. I'm told that there may have

14 been some other member of the press who, lawyer or otherwise,

15 who wanted to speak. Yes.

16 MR. GOLDING: Yes, your Honor. I'd like to address

17 the Court on the motion to close this courtroom.

18 THE COURT: Who are you?

19 MR. GOLDING: My name is Bruce Golding. I'm a

20 reporter for the New York Post.

21 It's my understanding that a hearing must precede your

22 decision to close these proceedings and that I and the

23 newspaper have the right to present argument at that hearing.

24 Through a grant of reasonable time, I'd like to contact my

25 editor and the newspaper's lawyer so that it may present



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1 arguments properly. May I have that time, please, your Honor?

2 Thank you very much.

3 THE COURT: Your First Amendment time, unfortunately,

4 runs up against the defendant's time to get speedily presented,

5 whether as a juvenile or as an adult, as the case may be. As

6 you may have noticed, while these proceedings normally would be

7 digitally tape recorded, on the assumption that if I do close

8 the courtroom, I'm going to get myriad applications from you

9 and your colleagues and that they will probably then be

10 reviewed by possibly a higher court. To make your life easier

11 or somebody's life easier, we're doing this with a court

12 reporter so a transcript, once it is unsealed, can be very

13 quickly made publicly available.

14 Unless the defense wishes to have things put off for a

15 day or more to gather more evidence and also allow you to argue

16 against them -- and I'm already seeing esteemed defense counsel

17 shaking their head no -- you can make whatever arguments you've

18 been supplied with by your lawyers or editors at the moment,

19 but because this is statutory and not just a matter of judicial

20 discretion, my hands are tied by the statute.

21 MR. GOLDING: If the Court will not take a brief

22 recess then, your Honor, on behalf of the New York Post, I

23 request that my objection and brief statement of the legal

24 issues be made part of the record in this case.

25 THE COURT: All right.



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1 MR. GOLDING: Thank you.

2 THE COURT: I guess that was the brief statement you

3 wanted to be made part of the record, and it is. And I won't

4 even charge you for the transcript, yet.

5 All right. Mr. Weinstein?

6 MR. WEINSTEIN: The proffer is, your Honor, we've

7 spoken to the defendant's father in Somalia, with the

8 assistance of an interpreter. We've arranged for him to be

9 available for a phone conference with the Court, subject to

10 cross-examination by the government, and the proffer is that he

11 is -- his date of birth is 11/20/93. And his father can

12 testify to how he knows that.

13 THE COURT: And is your client going to be testifying?

14 MR. WEINSTEIN: No.

15 THE COURT: Well, I guess the interesting question

16 will be how you would expect me to weigh the credibility of

17 statements allegedly made by the defendant -- and I won't say

18 anything more since we're ln open court -- with, you know, a

19 disembodied voice being translated for me over a telephone and

20 come up with a decision without your client testifying. I've

21 got to tell you, Mr. Weinstein, it's going to be a very tough

22 row you have to hoe, but if that's what you want to do, we will

23 seal the courtroom for that purpose.

24 MR. WEINSTEIN: I think you will use the same method

25 they will, since I assume the people to whom the statements



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1 were supposedly made, for the most part -- maybe one is here --

2 are not here. They're people on the boats. So it's an

3 equipoise for the Court to determine. You'll have the same

4 hearsay from both sides.

5 THE COURT: All right. Mr. McGuire, anything further?

6 MR. McGUIRE: Just, your Honor, if I could state the

7 government's position with respect to the hearing.

8 THE COURT: State it without going into any of the

9 things that you've already revealed to Mr. Weinstein and the

10 Court that they don't want revealed publicly at this point.

11 MR. McGUIRE: Absolutely. It's our view, given the

12 state of play right now, that there is no hearing necessary,

13 that the purpose of such a hearing has been obviated and that,

14 given current conditions, the defendant should be tried as an

15 adult.

16 THE COURT: I don't know about tried as an adult, but

17 presented as an adult.

18 Let me ask this, and I think it's clear, but why not

19 put you on the spot. If I hold that he is -- that whoever has

20 the burden of proof, that we go forward and treat Mr. Muse as

21 an adult and if that proves to be erroneous because the

22 information that you have may be correct, it may not be

23 correct -- Let me be less oblique on that, that you're relying

24 on certain statements by the defendant. If that proves wrong

25 and the Court, therefore, has been led into error, shall we



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1 say, what are the ramifications for the governmentj and are you

2 prepared, on behalf of your office, to live with those

3 ramifications if we go into an open proceeding?

4 MR. McGUIRE: Your Honor, I think the sole issue for

5 today is with respect to the complaint and the -- obviously

6 initially here, it is the sealing of this hearing.

7 THE COURT: Well, let me be more clear. While I

8 certainly feel that this is much ado about nothing since we've

9 got probably 200 people sitting and standing in the back of the

10 courtroom, and while a few of them are courthouse employees who

11 don't have anything better to do -- Hopefully that won't get

12 printed. That's a joke, folks. You know, in all seriousness,

13 the publicity aspect or the public knowledge aspect of it, this

14 all seems to me we're dancing on the head of a pin.

15 On the other hand, 18 US Code 5031, etc., is crystal

16 clear, and in the time that this issue has been on my desk

17 since 9:00 this morning or whatever, I have not had enough time

18 to research whether, if I make the decision that the

19 proceedings are open and that is incorrect, what are the

20 ramifications of that for the government?

21 MR. McGUIRE: Your Honor, there are -- this is

22 obviously not -- juvenile cases proceeding in federal court,

23 this is not the first one. And it can be the case --

24 THE COURT: The first one where I've had an issue as

25 to, is the person a juvenile or notj that's for sure.



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1 MR. McGUIRE: Well, I think that there are cases,

2 obviously, where the issue of the defendant's juvenile status

3 can come up, further along in the case. And in that case there

4 are cases where the treatment afforded, it is then -- the court

5 will then, as it were, treat the defendant, as of that time, as

6 a juvenile going forward. And that is -- that is a common

7 situation within this context.

8 THE COURT: But that's different than the juvenile

9 through counsel saying: I'm a juvenile, there should not be

10 public proceedings. There are then, if we go that route,

11 public proceedings, at which point, you know, to use the old

12 cliche, that bell can't be unrung. If there is any punishment,

13 any -- whatever the right word is -- sanction against the

14 government in that situation, I don't know what it might be,

15 but it might be dismissal of the case or something else, and I

16 want to make sure, in a case of this seriousness, that we are

17 all treading carefully.

18 MR. McGUIRE: We feel the same way, your Honor, and

19 we -- we are comfortable with the evidence that we have that

20 demonstrates the defendant's majority status.

21 THE COURT: Is it anything other than his statements?

22 MR. McGUIRE: There is -- there is evidence beyond the

23 statements.

24

25 that.

THE COURT: All right. Then I guess we'll get to



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1 All right. I know this is not going to make me

2 popular with the press, but that's why we get paid the big

3 bucks. Another joke. That you can print. I am going to close

4 the courtroom briefly.

5 Mr. Weiser, you're raising your hand.

6 MR. WEISER: Judge, I would just ask that if you find

7 that he is a juvenile and that the proceedings will remain

8 closed, I think we'd like to ask that at least we be given some

9 notice that a finding has been made. And if you find the

10 opposite, I think we'd like to ask that a transcript be

11 produced today and released today of the entire sealed hearing

12 and that, again, we'd be given quick notice when the hearing is

13 done so that we can find out --

14 THE COURT: Well, you can all hang around in the

15 hallway outside or you can all assemble in Room 850, and if we

16 open up the courtroom, we'll either turn the camera on and beam

17 into there or send a marshal down to tell you to come on back.

18 Gentlemen in the back with the blue shirt.

19 MR. RILEY: Your Honor, John Riley from Newsday. I

20 also signed the letter.

21 There have been various references over the last 15

22 minutes to discussions and perhaps papers having been reviewed

23 prior to us coming into this courtroom.

24 THE COURT: All right. Let me put whatever I can on

25 that on the record so you know what happened.



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1 First, the government gave me the complaint to review

2 to see if probable cause was established, and I have signed the

3 complaint. It is under a quasiseal or seal, which is why you

4 have not gotten it, so that this juvenile issue could be

5 resolved.

6 In addition, we had a very brief conversation this

7 morning on the record in the courtroom, tape recorded, and that

8 tape recording can be made available, depending on the outcome

9 of this proceeding, in which Mr. McGuire presented himself, his

10 statements as to what the government's evidence would be as to

11 whether Mr. Muse is a juvenile or not. That's some of the

12 information that will be repeated, I'm sure, at the hearing

13 we're about to hold. And at that point Mr. Weinstein and

14 Ms. Von Dornurn were relying -- which now I won't be funny

15 anymore -- they were relying on a press story that said that

16 Mr. Muse was a juvenile. They had not yet interviewed him or

17 seen him or anything else. There was no Somali interpreter

18 here at that time. This was around 11:00 this morning. And so

19 they briefly asked for time to interview him and decide what

20 they wanted to do. That is the gist of that hearing.

21 If either Mr. Weinstein or Mr. McGuire want to add

22 anything to that other than the sealed information, they can

23 put that on the record now.

24 MR. WEINSTEIN: Your Honor, I'm approaching with the

25 permission of the government just to ask you one question.



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1 THE COURT: Yes.

2 (Mr. Weinstein conferring with the Court)

3 THE COURT: Okay. Mr. Riley?

4 MR. RILEY: If I could just close the loop on that

5 then, I would -- all the objections made in our letter I would

6 extend to objecting to the lack of access to the complaint, to

7 the proceedings this morning, to the failure of the Court to

8 hold a hearing prior to closing the hearing this morning, and I

9 would -- My question is: Is it your intention that the release

10 or nonrelease of all those materials you just mentioned will

11 depend on the outcome of the hearing you're about to hold?

12 THE COURT: Let me be very clear. If Mr. Muse is a

13 juvenile, as the statute uses it, the proceedings must be

14 sealed as a matter of law. There's no balancing test. There's

15 nothing else. You know, go talk to our friends in Congress.

16 The statute says, if it's a juvenile proceeding, it must be

17 sealed. So if, at this hearing we are about to go into, it is

18 established that he is a juvenile, then you're not going to see

19 the complaint, at least subject to motions by your lawyers,

20 etc., or a sufficient passage of time that something happened

21 to otherwise change the situation.

22 If at this hearing the defense does not convince me or

23 the government doesn't convince me, whichever way you want to

24 look at that, if it is determined that he is not a juvenile at

25 this point, then you get everything, the complaint, the



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1 proceedings that we're about to go into to establish whether he

2 is a juvenile, and the very short counsel conference that we

3 had this morning.

4 MR. RILEY: And the question of whether you did or did

5 not find probable cause will also remain sealed?

6 THE COURT: Well, the probable cause is just the

7 complaint. If you know the procedures, all one does is review

8 the complaint, the agent swears to it, and if, in reading the

9 complaint and the agent swearing to it, that establishes

10 probable cause, then the Court signs it. There are no other

11 papers, no other decisions. The signature or nonsignature is

12 the finding of probable cause.

13 All right. Mr. Weinstein.

14 MR. WEINSTEIN: Your Honor, I'm about to present you

15 with a financial affidavit. Again, should the Court find that

16 this is sealed, it should be made public, but obviously

17 that's ...

18 THE COURT: All right. Hand it up, please.

19 (Pause)

20 THE COURT: All right. Mr. Muse, if you would please

21 stand.

22 Did you complete this financial affidavit with the

23 help of Mr. Weinstein and Ms. Von Dornum, and the interpreter?

24

25

THE DEFENDANT: Yes.

THE COURT: Is this your signature on the bottom?



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1 THE DEFENDANT: Yes.

2 THE COURT: Please raise your right hand.

3 Do you solemnly swear that the information in your

4 financial affidavit is true/ complete and correct/ so help you

5 god?

6 THE DEFENDANT: It is very true what I wrote in there.

7 THE COURT: All right. I approve your application and

8 appoint Mr. Weinstein and Ms. Von Dornum and the Federal

9 Defenders to represent you. You may be seated.

10 Mr. Weinstein/ does it make sense -- and I'm sorry

11 we're making people stand this long. Maybe we should have gone

12 into the overflow room. But does it make sense to give

13 Mr. Muse the other warnings that he would be given at an

14 initial presentment?

15 MR. WEINSTEIN: In open court/ that's fine.

16 THE COURT: All right. So that we're doing as much as

17 possible ln front of the watchful/ helpful eyes of the press.

18 Mr. Muse Why did you laugh at that? I was not being

19 facetious on that one.

20 Mr. Muse/ let me advise you of certain rights that you

21 have. This is not a trial/ and you're not called upon to

22 answer the charges against you at this time. You have the

23 right to remain silent. You're not required to make any

24 statements. Even if you've already made any statements to the

25 authorities/ you need not make any further statements.

SOUTHERN DISTRICT REPORTERS/ P.C. (212) 805-0300


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1 Anything you do say can be used against you. You have the

2 right to be released, either conditionally or without

3 conditions, pending trial, unless I find that there are no

4 conditions that would reasonably assure your continued presence

5 in court and the safety of the community. If the government

6 asks me to detain you pending trial, you're entitled to a

7 prompt hearing on whether those conditions exist.

8 Do you understand all of these rights, Mr. Muse?

9 THE DEFENDANT: Yes.

10 THE COURT: You have the right to be represented by

11 counsel during all court proceedings, including this one, and

12 during all questioning by the authorities. If you cannot

13 afford an attorney, I will appoint one today, as I have just

14 done, to represent you throughout this case at no charge to

15 you.

16 Do you understand your rights to counsel, Mr. Muse?

17 THE DEFENDANT: I understand. I don't have any money.

18 THE COURT: All right. And that's why I've appointed

19 Ms. Von Dornum and Mr. Weinstein to represent you. You don't

20 have to pay them anything. The Court takes care of that.

21 Understood?

22 THE DEFENDANT: I understand.

23 THE COURT: Good. We could, if you wish, go through

24 the rights to the preliminary hearing and

25 MR. WEINSTEIN: We can. We have a medical application



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1 and a bunch of other stuff, which we could do publicly.

2 THE COURT: We could also, without revealing the

3 contents of the complaint, if both sides consent, you know,

4 have the colloquy about your having received the complaint,

5 etc. We seem to have an objection from the government.

6 MR. RASKIN: Your Honor, we're just not comfortable

7 going forward with anything that resembles a presentment until

8 the defendant has at least had a copy of the complaint in front

9 of him, reviewed the charges with his

10 THE COURT: I think he already has.

11 MR. WEINSTEIN: He has. We have.

12 MR. RASKIN: We haven't seen him review the complaint.

13 MR. WEINSTEIN: Well, you never do.

14 MR. RASKIN: The complaint is not here and --

15 MR. WEINSTEIN: Yes, it is. We have a copy.

16 MR. RASKIN: Excuse me.

17 MR. WEINSTEIN: Okay.

18 MR. RASKIN: We would prefer to do the presentment as

19 a presentment is normally done, with the public reading of the

20 charges, if necessary, as opposed to doing it in a bifurcated

21 fashion like that.

22 THE COURT: The public reading can be your press

23 conference later on, because in the 14 years I've been doing

24 this, I don't think defense counsel, and certainly not the

25 Federal Defenders, have ever asked that the complaint be read



23

9411mush

1 in open court as opposed to recognizing that it's been verified

2 and sworn to and that they have received it and reviewed it

3 with their client. Nevertheless, since we are, you know,

4 trying to accommodate First Amendment interests versus Fifth

5 Amendment interests but since there's an objection to doing

6 that, we'll hold off on that, and at this point we will go into

7 sealed proceedings.

8 So all those who are not involved as counsel in this

9 case or law enforcement need to leave the courtroom. That will

10 include all court staff except for my staff. So other law

11 clerks, sorry about that.

12 MR. WEINSTEIN: Your Honor, Ms. Doherty is part of our

13 team, right here.

14 THE COURT: Okay.

15 (All unauthorized persons excused and the courtroom

16 sealed)

17 (Recess)

18

19

20

21

22

23

24

25



24

9411mush

1 (In open court)

2 MR. RASKIN: Your Honor, if we're beginning, I just

3 have --

4 THE COURT: Well, first I want to make sure that the

5 people left in the courtroom are supposed to be here and that

6 it's not somebody who, like a wedding, each side thinks they're

7 with the other side and we have wedding crashers. So let me

8 ask just, out of an excess of caution, could you please

9 identify on the prosecution side those who are with you. Is

10 that everybody on my right side of the courtroom?

11 MR. McGUIRE: That's correct, Judge.

12 THE COURT: All right.

13 MR. WEINSTEIN: The groom side is on the left, so we

14 have Ms. Doherty, Mr. Byrnes

15 THE COURT: I recognize some of them, and they're all

16 with you?

17 MR. WEINSTEIN: The three over here.

18 MS. VON DORNUM: And we also have a representative

19 from the MCC here, your Honor, whom we did not ask to be here.

20 We don't have an objection, but he's not with us, technically,

21 of course.

22 THE COURT: What does the government want?

23 MR. McGUIRE: We have no objection.

24 THE COURT: All right. Then the CSOs would please

25 lock the courtroom door. We are now in sealed session.



25

9411mush

1 MR. WEINSTEIN: Your Honor, just, again, in excess of

2 caution, assuming the Court does not find this a juvenile, that

3 the representative of the MCC -- we have no objection to him

4 being here -- be under a gag order for the time being?

5 THE COURT: Understood?

6 MCC REPRESENTATIVE: I assume, your Honor, I can

7 notify my warden of the proceedings, because we are housing him

8 currently.

9 THE COURT: Yes, I understand that. No talking to the

10 press or anyone outside the law enforcement community.

11 MCC REPRESENTATIVE: That will not happen, your Honor.

12 THE COURT: All right. We are now in a sealed

13 proceeding. And let us begin.

14 MR. RASKIN: Your Honor, just a word on what the

15 government's position will be down the line.

16 THE COURT: Time out. I am told that for recording

17 purposes, we just need to announce the case and get counsel to

18 note their appearances again, so the clerk will do that.

19 (Case called)

20 (Appearances noted)

21 THE COURT: All right. Proceed.

22 MR. RASKIN: Just very briefly, your Honor, if the

23 Court finds that Mr. Muse is a juvenile, here is what the

24 government's position is on what would happen next. A

25 complaint would be filed, publicly, though that complaint would



26

9411mush

1 only bear the defendant's initials. The complaint would not be

2 sealed. The proceedings would not be sealed. The case would

3 not be sealed. His name would be kept out of the public view.

4 Okay?

5 The defense has made a decision to bring their client

6 into the courtroom and have his name announced to the public,

7 right? If you rule that he is a juvenile, we will then go back

8 and we will file -- You have the complaint. We will take the

9 name off the complaint and we will replace that name with

10 initials. So from the government's perspective, we really

11 don't see what we're doing here.

12 THE COURT: Ms. Von Dornum?

13 MS. VON DORNUM: Your Honor, I know you know better

14 than I do. We did not have the defendant's name announced to

15 the press ahead of time. And 18 United States Code 5038(c)

16 states that, "During the course of any juvenile delinquency

17 proceeding, all information, records relating to the proceeding

18 which are obtained or prepared in the discharge of an official

19 duty by an employee of the court or an employee of any other

20 governmental agency," which one must assume includes the United

21 States government and the Executive Branch, "shall not be

22 disclosed, directly or indirectly, to anyone other than the

23 judge, counsel for the juvenile and the government, or others

24 entitled under this section to receive juvenile records." The

25 others entitled, as you know, are specifically listed under



27

94llmush

1 subsection A. That does not involve a public filing, so I

2 think if the government were to treat -- were to file a new

3 complaint publicly, that would violate this statute.

4 MR. RASKIN: That is why -- that is why the

5 defendant's name isn't on the complaint and only the initials,

6 because it is not identified as a juvenile proceeding if his

7 name isn't on it.

8 THE COURT: Because we have lots of Somali pirates

9 being presented in this district.

10 I understand you're both dancing on the head of a pin,

11 and I'm not sure any of this makes sense, but let's proceed and

12 we'll see where it leads us.

13 So Mr. Raskin or Mr. McGuire, I guess you get to go

14 first on this. Why don't you present your evidence either

15 through agents, if the agents who heard these statements are

16 here, or otherwise, and then we'll hear from the defense and

17 we'll go from there.

18 MR. McGUIRE: Your Honor, I'll proceed by both, if I

19 may. I'll begin, and then I'll ask one of the agents to stand

20 and address the Court.

21 The government's evidence is as follows: On four

22 different occasions the defendant stated that he was over 18.

23 On April 12 th , 2009, initially stating that he's 16; hours

24 later, he stated through a Somali interpreter that he was 19;

25 and hours after that, he stated that he was 26. The following



28

94l1mush

1 day, during a pedigree interview, again, with the assistance of

2 a Somali interpreter, he stated that he was 19. Those are the

3 instances that I will address.

4 I would also -- the Court asked earlier about other

5 sources other than the defendant's statements. The government

6 is aware of comments from -- the reporting from the defendant's

7 brother, who stated that the defendant is 18.

8 In addition to that, and I think

9 THE COURT: I'm sorry. Is that reported via the press

10 or ...

11 MR. McGUIRE: No.

12 THE COURT: Okay.

13 MR. McGUIRE: And I think in addition to that, what I

14 think is most compelling is the defendant's statements

15 yesterday to one of the interviewing FBI agents on the plane as

16 he was being flown here to Southern District of New York, and I

17 will ask Detective Fred Galloway, who was that interviewing

18 agent, to stand up briefly to address the Court and explain, or

19 describe his conversation with the defendant when he was asked

20 his age.

21 MR. WEINSTEIN: I'd just ask that it be under oath,

22 your Honor.

23 THE COURT: All right. We don't have a witness box

24 here, do we? So you can stand.

25 THE CLERK: Right there.



29

9411mush

1 THE COURT: Oh. Unless anyone cares, we'll let him

2 stand at the table. But we will swear you in.

3 THE CLERK: Can you please state your name for the

4 record.

5 THE WITNESS: Frederick Galloway.

6 THE CLERK: And your title?

7 THE WITNESS: Detective Frederick Galloway.

8 (Witness sworn)

9 THE COURT: All right. Proceed. Mr. McGuire, do you

10 vvant to do a narrative, do you want to do it as questions?

11 Whatever you'd prefer.

12 FREDERICK GALLOWAY,

13 called as a witness by the Government,

14 having been duly sworn, testified as follows:

15 DIRECT EXAMINATION

16 BY MR. McGUIRE:

17 Q. I will just ask Detective Galloway to just describe what

18 his conversation with the defendant was yesterday when he asked

19 the defendant for his age.

20 A. While flying back from Djibouti, Africa, I did interview

21 Mr. Abdu -- Abduwali.

22 THE COURT: The defendant here?

23 THE WITNESS: Yes.

24 THE COURT: Okay. Proceed.

25 A. I did ask him his name and asked him how old he was, and



30

94l1mush Galloway - direct

1 when it got to his age, he laughed. And I asked him, Why are

2 you laughing? And he looked at me again. He smiled again. I

3 said, What's the matter? And he goes -- I said, Are you 15?

4 He laughed again. Then I asked him, Are you a true Muslim?

5 And he says yes. And I said, Do Muslims lie? And then he

6 said -- through his interpreter, he said. No. I'm sorry. I'm

7 between 18 and 19.

8 THE COURT: All right. Anything else?

9 A. Yeah. He also said, I'm sorry for lying to you. He said,

10 When I pray again, I'll ask Allah to forgive me for lying to

11 you, and I won't lie to you again.

12 MR. McGUIRE: Your Honor, I'd also add, at the

13 pedigree interview the defendant had on April 13 th , he was

14 asked about obviously a host of pedigree information. He was

15 also asked about the ages of the three deceased pirates with

16 whom he is alleged to have committed the crimes charged, and he

17 provided their ages. For one of the deceased pirates, he

18 provided an age of approximately 31; for the second pirate, he

19 provided an age of approximately 28; and for the third pirate,

20 he provided the age of approximately 35.

21 And in addition, your Honor, based on the perception

22 of the witnesses on the hijacked ship, in terms of their

23 perceptions of the defendant, both in terms of his conduct and

24 in his physical appearance, multiple witnesses from that ship

25 estimated his age to be approximately 25.



31

9411mush

1 THE COURT: All right. And with respect to the three

2 now deceased pirates, does the government have any information

3 as to how old they actually are?

4 MR. McGUIRE: The government does not have that

5 information as of now, your Honor.

6 THE COURT: Even approximately?

7 MR. McGUIRE: It has not been determined yet, Judge.

8 THE COURT: All right. Mr. Weinstein?

9 MR. WEINSTEIN: I just want to ask our client two

10 questions, your Honor, with the interpreter.

11 THE COURT: Okay. Go ahead.


13 THE COURT: All right. Mr. Weinstein, before you

14 proceed, let us just borrow the interpreter to tell the father

15 on the phone that he has to keep holding on. He's been on

16 silent hold.

17 MR. McGUIRE: Your Honor, I just want to make one more

18 point, if I might.

19 THE COURT: Well, let's just ...

20 MR. McGUIRE: I'm sorry. Okay.

21 (Pause)

22 THE COURT: All right. Proceed, Mr. McGuire.

23 MR. McGUIRE: As your Honor is aware, while this issue

24 has not come up in quite a bit in the past, there are cases

25 that do address it. One that the government would direct the

SOUTHERN DISTRICT REPORTERS, P.C. (212) 805 0300


32

9411mush

1 Court to is us v. Alvarez-Porras --

2 THE COURT: Any chance you brought copies?

3 MR. McGUIRE: I don't have copies, but I can certainly

4 get copies.

5 THE COURT: What's the citation?

6 MR. McGUIRE: 643 F.2d 54 (2d Cir. 1980) .

7 THE COURT: Which says what?

8 MR. McGUIRE: Which says -- which says, among other

9 things, that in this context, impugning a defendant's

10 credibility with respect to his own statements about his age

11 may, on its own, satisfy the government's burden in

12 establishing majority status. To that point --

13 THE COURT: Well, but was there contrary evidence

14 there?

15 MR. McGUIRE: Was there contrary evidence there? Yes,

16 that went to an age hearing, where there was a dispute as to

17 the defendant's status. And among other things, the government

18 was able to demonstrate that the answers, among them pedigree

19 answers that the defendant gave, in addition to his age, were

20 so incredible that he could not be believed as to his age that

21 he gave that was below 18.

22 To that point, at the time that the defendant provided

23 pedigree information on April 13 th on one of the Navy vessels

24 in which he said he was 19, he also provided the names of his

25 relatives as well as, as I mentioned before, the ages of the



33

941lmush

I deceased pirates and their names. The names of the relatives

2 that he provided, including the names of his parents, brothers

3 and sisters, were also provided by him yesterday to Detective

4 Galloway when the defendant again said that he was of majority

5 status. Those names in both instances check out. And so in

6 that, the government would submit that in both instances the

7 defendant was being credible about his family, was being

8 credible about his age, which is that of a majority.

9 THE COURT: One more question for you and -- well, let

10 me start with Detective Galloway.

11 Did Mr. Muse give a date of birth, including month,

12 date, year or any subparts of that, or just that he was between

13 18 and 19?

14 THE WITNESS: Just between 18 and 19. He said because

15 they had no -- they had no government when he was born and so

16 there was no record, so he didn't know.

17 THE COURT: All right. Mr. McGuire, during the

18 pedigree interview on the 13 th or the statement on the

19 12 th , was any specific date given?

20 MR. McGUIRE: It was not, Judge.

21 THE COURT: Okay. Mr. Weinstein, any questions for

22 the detective?

23 MR. WEINSTEIN: I do, and just one comment on the

24 appellate case cited by Mr. McGuire. I think as the Court

25 knows, there is an abuse of discretion review by the Court of



34

9411mush

1 Appeals. Usually it is not a fact finding, so the issue is not

2 that. So -- and I haven't read the case. But putting that

3 aside for a moment, I mean, maybe it says that.

4 But yes, I do have some questions for the detective.

5 THE COURT: All right. Go ahead.

6 CROSS-EXAMINATION

7 BY MR. WEINSTEIN:

8 Q. Detective, was Mr. Muse in handcuffs?

9 A. Yes, he was.

10 Q. Was he in leg shackles?

11 A. Yes, he was.

12 Q. Did he have tape or some substance over his eyes?

13 A. During our interview, no, but at some point upon entering

14 the plane, he did.

15 Q. And it was removed when you entered -- interviewed him,

16 correct?

17 A. Yes.

18 Q. And he also had a wound on his hand?

19 A. Yes, sir.

20 Q. And he told you he was in pain.

21 A. He told me he was -- he told me he was in pain for

22 something else, not the hand. The wound on his hand.

23 Q. Okay. Did he ask for medication?

24 A. No. We had a doctor aboard. We had a doctor on board.

25 Q. Was he crying?



35

94llmush Galloway cross

1 A. No.

2 Q. Never cried.

3 A. I never saw him cry.

4 Q. Do you know where, what region of Somalia the interpreter

5 was from?

6 A. I'm not sure.

7 Q. Do you know what dialect the interpreter spoke?

8 A. No.

9 Q. You don't speak Somali, do you?

10 A. No, sir.

11 Q. Was there anyone else on the plane who spoke Somali?

12 A. No.

13 Q. When you questioned him, did you tell him that you -- that

14 he had to answer your questions?

15 A. No, sir.

16 Q. And he just voluntarily did it?

17 A. Yes, sir.

18 Q. Were you with him before he got on the plane?

19 A. Yes, sir.

20 Q. And how long were you with him prior to boarding the plane?

21 A. About 45 minutes.

22 Q. And do you know where he was before that?

23 A. Yes.

24 Q. Where was he?

25 A. He was -- he was at -- on the Boxer, USS Boxer.



36

9411mush Galloway - cross

1 Q. And do you know how long he had been aboard that ship?

2 A. Not offhand, but I have notes that tell me.

3 Q. A week; is that a fair guess?

4 A. A couple days.

5 Q. Couple days?

6 A. Yeah.

7 Q. And as far as you know, he'd been in custody since

9 A. Yes.

10 Q. And during that time he didn't call his parents?

11 A. I don't think he had a phone call.

12 Q. He had no phone calls. So did he have any contact with the

13 outside world?

14 A. No, not that I know of.

15 Q. Not that you know of?

16 A. Right.

17 Q. I can only ask you what you know.

18 MR. WEINSTEIN: Okay. Nothing further, your Honor.

19 THE COURT: Anything further?

20 REDIRECT EXAMINATION

21 BY MR. McGUIRE:

22 Q. Detective Galloway, before you received this information

23 from the defendant, did you advise him of his Miranda rights?

24 A. Yes.

25 Q. Did he waive those rights?



37

9411mush Galloway - redirect

1 A. Yes.

2 Q. Did the defendant understand any English?

3 A. No.

4 THE COURT: Okay.

5 RECROSS EXAMINATION

6 BY MR. WEINSTEIN:

7 Q. Was there a signed waiver?

8 A. Yes, sir.

9 Q. Do you have a copy of it?

10 A. Yes, I do.

11 MR. WEINSTEIN: May I see it.

12 THE COURT: Do you want to mark it as an exhibit to

13 the hearing? Which

14 MR. RASKIN: Early discovery, your Honor.

15 This may be our only copy we have, because we weren't

16 prepared to produce discovery today.

17 MR. WEINSTEIN: I'll give it back.

18 (Pause)

19 THE COURT: All right. Any other questions while the

20 detective is looking for that?

21 MR. WEINSTEIN: No.

22 THE COURT: All right. Anything else from the

23 government?

24

25

MR. McGUIRE: No, your Honor.

THE COURT: All right. Mr. Weinstein?



38

9411mush

1 Ms. Von Dornurn? We've lost the person on the phone, so if

2 that's who you're going to call, we need to call them again.

3 All right. Madam reporter, would you help out on

4 that? I mean, Madam interpreter, would you help out on that.

5 (Pause)

6 THE COURT: All right. Madam interpreter, you'll need

7 to stand here so you're near the phone but also use the

8 headphone for the benefit of Mr. Muse, the microphone. This is

9 going to be an interesting challenge.

10 All right. Ms. Von Dornurn, do you wish to ask the

11 father some questions?

12 MS. VON DORNUM: Yes, your Honor. Thank you.

13 THE CLERK: Do I swear him in?

14 THE COURT: Yes.

15 THE CLERK: Can you please state your name for the

16 record.

17 THE WITNESS: I'm the father. Abdukadir Muse is my

18 name.

19 THE CLERK: Do you affirm and declare that the

20 testimony that you shall give this Court in this issue shall be

21 the truth, the whole truth, and nothing but the truth?

22 THE WITNESS: Me? What did you say?

23 THE COURT: Do it again.

24 THE CLERK: You do affirm and declare that the

25 testimony that you give this Court in this issue shall be the



39

9411mush

1 truth, the whole truth, and nothing but the truth?

2 THE WITNESS: I put on God that I will tell the truth.

3 I'll answer any questions that you guys have that I know.

4 THE COURT: Go ahead.

5 ABDUKADIR MUSE GHEDI,

6 called as a witness by the Defendant,

7 having been duly sworn, testified as follows:

8 DIRECT EXAMINATION

9 BY MS. VON DORNUM:

10 Q. What is the name of your oldest son?

11 A. Abdu.

12 Q. What's his full name?

13 A. Abduwali Abduchadir Muse.

14 Q. And how many children do you have?

15 A. 12.

16 Q. And do you know when Abduwali was born?

17 A. 1993, November.

18 Q. Do you know what day in November?

19 A. The 20 th .

20 Q. The 20 th of November 1993 is when Abduwali was born?

21 A. Yes, Abdu was born on that day.

22 Q. And where was he born?

23 THE INTERPRETER: I can't hear.

24 MR. WEINSTEIN: Maybe you can just pick up the phone

25 rather than ...



40

941lmush Muse Ghedi - direct

1 A. Afgooye (ph).

2 Q. Was he born at home or in a hospital; what location?

3 A. House. House.

4 Q. And do you know the birthdate of your next oldest child?

5 A. He was born -- I don't remember if it was July or -- July

6 or August, but he was born in '97.

7 Q. The next oldest.

8 A. Yes.

9 Q. Okay. And how can you be so certain about the date of

10 birth of Abduwali?

11 A. I'm grown and I'm older, so I know when I had my first --

12 my child.

13 Q. And do you celebrate the birthdays of your children at your

14 home in Somalia?

15 A. We slaughter an animal and we celebrate.

16 Q. And are you close? Did you see Abduwali regularly growing

17 up?

18 A. Yes, I see him a lot. He was with his mom the whole time.

19 But when me and his mom got separated, when me and the mother

20 got separated, he used to come around.

21 Q. Do you know how many years of school, if any, he had?

22 A. He only went to like a mosque to study, but he never had

23 that much schooling.

24 Q. Did he have any --

25 THE INTERPRETER: I can't hear him. I have to ask him



41

9411mush Muse Ghedi - direct

1 to repeat.

2 A. I live in the village. I stayed in the village.

3 Q. Did he have any --

4 A. Okay. I have another wife, so during that time I was in

5 the village, but I know that -- I don't know if she took him to

6 school or not, but I don't think he had a lot of schooling.

7 Q. Okay. And even when you had your other wife, did you still

8 see Abduwali regularly?

9 A. Okay. When I used to go around and visit and stuff, I

10 would see him or -- I'm his father, so he came and saw me all

11 the time.

12 Q. Did you see Abduwali on the first day that he was born?

13 A. Mm-hmm. I was there when he was born.

14 Q. And do you have any doubt that that day was

15 November 20 th , 1993?

16 A. I was there. I was there the whole time. I was there.

17 MS. VON DORNUM: Thank you.

18 MR. McGUIRE: Let me begin by asking the interpreter

19 to repeat the gentleman's name. I didn't catch that at the

20 beginning. And spell it.

21 THE INTERPRETER: For me? Abdukadir, A-B-D-A-D-A --

22 I'm trying to remember. I'm sorry. A-B-D-U-A-D-I-R. Muse,

23 M-U-S-E.

24 MR. McGUIRE: Could we just confirm that that's his

25 full name.



42

9411mush Muse Ghedi

1 THE WITNESS: My real name is Abdukadir Muse Ghedi.

2 MR. McGUIRE: If I could ask the defense, what is the

3 phone number that was called?

4 (Ms. Von Dornum provided the phone number, which has

5 been redacted from this record.)

6 MR. McGUIRE: We have no questions, your Honor.

7 THE COURT: Ask him what the birthdate of his fourth

8 oldest child is, please.

9 THE WITNESS: I was not with my wife at the time when

10 the child was born.

11 THE COURT: But does he know the birth, date of birth

12 anyway, even if he wasn't there?

13 THE WITNESS: I went to the village somewhere out in

14 the woods where -- for about a month and a half. When I got

15 back, he was there.

16 THE COURT: What year?

17 THE WITNESS: 1990.

18 THE COURT: Okay. That's all I have. Anything

19 further from either side?

20 MR. WEINSTEIN: No questions, your Honor.

21 MR. McGUIRE: No, your Honor.

22 THE COURT: All right. Then tell him thank you and we

23 can hang up.

24 MR. WEINSTEIN: I just want to ask the interpreter

25 something about this.



43

9411mush

1 (Pause)

2 THE COURT: Okay. Anything further from the defense

3 in terms of evidence?

4 MS. VON DORNUM: No, your Honor.

5 MR. WEINSTEIN: No, your Honor.

6 THE COURT: All right. And I know there are Fifth

7 Amendment issues and all of that, but I take it you are not

8 calling Mr. Muse, and I would be prepared to limit questions to

9 him only about his age.

10 MR. WEINSTEIN: Can we have two minutes to talk with

11 him with the interpreter, your Honor?

12 THE COURT: Yes.

13 MR. WEINSTEIN: We'll just stand back here for ...

14 THE COURT: That's fine.


16 THE COURT: All right. Mr. Weinstein r are you ready?

17 MR. WEINSTEIN: We're just finishing. Yes r we are.

18 We're not putting him on.

19 THE COURT: All right. If you feel you must make

20 argument r do so. Otherwise r I'm prepared to rule.

21 MR. McGUIRE: BrieflYr your Honor r I think what we

22 have here that's most compelling is the defendant's own words.

23 Either Ar they are true and on four different occasions he

24 stated that he was of majority status; or, Br he's playing

25 around with his age and his credibility with respect to his age



44

9411mush

1 has been sufficiently impugned that it's clear that he is

2 deliberately claiming that he's minority status and that on

3 that basis alone, as I stated earlier, under Second Circuit

4 caselaw, that alone permits the Court to make a finding that

5 the defendant's of majority status.

6 I think secondly, because of the nature of these

7 proceedings -- and it is an unusual argument, but in this

8 context we can make it -- the Constitution is not offended if

9 the Court seeks affirmative evidence from the defendant, and as

10 we just saw, the defendant chose not to testify. The person in

11 the unique -- with the unique position of knowing the most

12 about his age has chosen not to tell the Court about his age.

13 Finally, with respect to the defense's sole witness

14 and the telephone call that we just heard, it's clear that that

15 witness had selective memory about certain dates. The only

16 birthdate the witness was able to remember was that of the

17 defendant. Otherwise, there were

18 THE COURT: I get the point. Anything else?

19 MR. McGUIRE: And finally, I believe at the end of

20 that, the defendant -- the witness said that his fourth oldest

21 child was born in 1990, which would make that child 19, and he

22 said the defendant was his oldest child.

23 And finally, the phone number that was used to call

24 this individual differed than the phone number that was

25 provided as a contact by the defendant at the time of his



45

94l1mush

1 pedigree.

2 THE COURT: Mr. Weinstein?

3 MR. WEINSTEIN: Number one, there is an underlying

4 assumption by the government that Mr. Muse understood the

5 significance of age. My guess is that he didn't.

6 Second, he made various inconsistent statements to the

7 government. He was shackled, he was in pain, he was under

8 medication, he was denied any communication with anyone for

9 over a week. And even then he said 16, 18, 26. He gave a

10 bunch of different ages.

11 As to knowing his age, it is not uncommon, I am told,

12 in Somalia, for people not to be certain of when they're born.

13 They may have -- What they know is what their parents tell

14 them. And the person in the best -- The only reason I know

15 when I'm born is because I have a birth certificate, but that

16 doesn't exist, but otherwise it's because of what my parents

17 would have told me. I suspect that in a place like Somalia,

18 where there are no birth certificates - he was born in a

19 village, I'm guessing a midwife -- that there are no records

20 and he knows what his parents have told him.

21 And also, by the way, the final part is, when -- the

22 first age he said was, he was 16, which, without having

23 heard -- presumably they weren't giving him the New York Times

24 or the Associated Press, and so when he said that, that's

25 consistent with what has been said in the press.



46

9411mush

1 THE COURT: All right. The Court finds that he will

2 not be treated as a juvenile. The Court is persuaded by the

3 evidence from Detective Galloway. Whatever the issues were in

4 not understanding or anything like that are issues that could

5 have been addressed by the defendant, Mr. Muse.

6 The Second Circuit case that Mr. McGuire cited to

7 previously, which my clerk printed out and I've read while all

8 this was going on, United States v. Alvarez-Porras, 643 F.2d 54

9 (2d Cir. 1981), the only case cited to the Court by either

10 side, in fact had a situation where the defendant testified at

11 the age hearing. So that is something that the defendant here

12 could have done, and the Court, as I noted, was prepared to

13 limit questioning so that it did not open the door and waive

14 any other, or any Fifth Amendment rights at all. You know, it

15 would be impermissible for a defendant to say, I'm not

16 testifying ever, I'm going to let the government prove my age,

17 particularly if I've come from a country where birth

18 certificates don't exist, and then say the government hasn't

19 met its burden.

20 Even to the extent that the burden is the government's

21 here -- and I believe that is ultimately correct and it is

22 their burden -- Detective Galloway's testimony about asking

23 whether he was a true Muslim of the defendant and then getting

24 the answer that he was between 18 and 19 is credible to the

25 Court.



47

9411mush

1 And whether it was language problems or what it was --

2 and obviously all I was able to understand was the interpreter

3 and not Mr. Muse's father, but it does strike the Court as

4 incredible that he knew the defendant Muse's birth down to the,

5 you know, month, day and year, but that as to the second oldest

6 child he was rather vague, it was somewhere in a two-month

7 period, and as to the fourth child, he picked a date that would

8 make the fourth child the oldest child. So again, either he

9 didn't understand or, quite frankly, having been educated by

10 the press, it is conceivable that, you know, he knew he needed

11 to pick an age under 18 in order for his son to be treated as a

12 juvenile.

13 Finally, and a small factor in this case but

14 nevertheless another factor is, there is no secret as to who

15 this defendant is and what he's being charged with, and the

16 need for juvenile secrecy, albeit that's what the statute

17 provides, is clearly obviated by the situation we found

18 ourselves in today. If that's the government's fault, you can

19 deal with that at some other point. But quite frankly, what we

20 did in open court, even though it would have been a charade if

21 we just said, you know, in re possible juvenile pirate or any

22 other way that the case would have been called anonymously,

23 which the Court was prepared to do, in order to have Mr. Muse

24 see what's going on and know that you really are his attorneys

25 and are fighting for him and good reason to bring him out, but



48

94llmush

1 you know, no pun intended, the ship certainly sailed from the

2 defense point of view at that point. But as I say, that's sort

3 of the footnote to the opinion, my main opinion, and obviously

4 at the appropriate time you can take it to whatever appropriate

5 reviewing court. Obviously it went up to the Second Circuit in

6 the Alvarez-Porras case eventually. But in this case, I just

7 did not find the father's testimony to be credible at all.

8 No testimony directly in front of the Court from the

9 defendant, Mr. Muse, and credible testimony from Detective

10 Galloway, even if the Court ignores the other proffer from

11 Mr. McGuire as to the other statements where the defendant, in

12 giving pedigree and other information, said he was not a minor.

13 So at this point I am going to unseal the courtroom,

14 unseal this transcript so that the press can have access to it,

15 briefly summarize it, and so we will take a short recess just

16 long enough to bring the press in.

17 MR. WEINSTEIN: Your Honor, I guess the only thing we

18 would ask is the father's number be redacted. I gave it to the

19 government.

20 MR. McGUIRE: No objection, your Honor.

21 THE COURT: All right. The reporter will make sure to

22 redact that out of the transcript.

23 MR. McGUIRE: And just to close the loop, your Honor,

24 the government will now go and file the complaint.

25 THE COURT: All right. And you can file it. Bring me



49

9411mush

1 my copy. We'll go through the rest of the proceedings.

2 I'll ask the marshals to bring in as many people as

3 will fit and then we'll open up Room 850 for the overflow.

4 Let's give priority to the sketch artists.

5 We'll take a five-minute recess for all that shuffling

6 to occur.

7 (Recess)

8 (End of stenographic record)

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25



EXHIBITB

" . ~ . .

:. .... ':'


1 UNITED STATES DI'8TRICT COURT SOUTHERN DISTRICT OF NEW YORK

2 ------------------------------x 3 UNITED STATES OF AMERICA,

4 v.

5 ENRIQUE CARTY,

6 Defendant.

7 ------------------------------x

95 Cr. 973 AGS 95 Cr. 980 AGS

8 November 9, 2001 11:00 a.m.

9 New York, N.Y.

10 Before:

11 HON. ALLEN G. SCHWARTZ,

12 District Judge

13 APPEARANCES

14 MARY JO WHITE United States Attorney for the

15 Southern District of New York DAVID C. ESSEKS-

16 Assistant United States Attorney

17 GEOFFREY STEWART Attorney for Defendant

18 YOLANDA SAMAYOA Spanish Interpreter

19

20 SENTENCE

21

22

23

24

25

1b9icars ag

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1 THE COURTROOM DEPUTY: For sentencing, United States

2 v. Enrique Carty, 95 Cr. 973 and 95 Cr. the 80.

3

4

5

MR. ESSEKS: David Esseks for the government.

MR. STEWART": Geoffrey Stewart for Enrique Carty.

THE COURT: We are here this morning as a result of

6 the fact that the Second Circuit in this case has vacated the

2"

7 sentence and remanded this matter to the district c'ourt so that

8 this Court "can reconsider the defendant's request for a

9 downward departure and 0.0 so in light of this holding."

10 I have now received from Mr. Stewart additional

11 materials in support of his motion for downward departure and I

12 have read all of those materials and I am ~ow prepared to

13 proceed. Are you prepared to proceed, Mr. Stewart?

14

15

MR. STEWART: Yes, I am, Judge.

THE COURT: I won't repeat what was said in the

16 earlier proceeding; that is, I know that you and your client

17 have read the presentence report and you either noted or had

18 the opportunity to note any objections or comments you have.

19 And I will not repeat all that I have said there because this

20 resentencing is isolated to the issue that the Second Circuit

21 has referred to. So I'm prepared to hear you if you wish to

22 address the Court, Mr. Stewart, as to the submission that

23 you've made and any other matter that you may wish to bring to

24 the Court's attention.

25 MR. STEWART: Thank you, Judge. I appreciate that

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3

1 opportunity. I don't want to belabor and repeat any of the

2 issues that are raised in what I submitted to the Court. I

3 would just ask that that, as well as all the previously

4 submitted materials, the request for downward departure at the

5 initial sentencing, be made part of the record here as well. I

6 think it is part of the record.

7 THE COURT: It is my understanding that that is

8 appropriate and all of those materials submitted in connection

9 with the prior proceeding are deemed part of this record as

10 well as the transcript of the earlier sentence except obviously

11 in regard to the portion that has to do 'with the denial of the

12 motion for downward departure on the basis of his having been

13 incarcerated in the Dominican Republic under those adverse

14 conditions. So all that I've said previously and all that was

15 submitted previously are all part of this record.

16 MR. STEWART: Thank you, Judge. Just very briefly and

17 then I'll ask the Court to allow Mr. Carty to speak as well.

18 There was a time'before 1987 when sentencing of a defendant in

19 a criminal matter had much to do with the individuality and the

20 person, of the individual Qefore the Court. The court then

21 considered rehabilitation, the court would consider deterrence

22 as well as ideas of incapacitating the defendant before the

23 court.

24 Rereading what occurred at the original sentencing and

25 then having participated in the appeal process, at best I think

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1 the Court of Appeals thought that there may have been an issue

2 apout whether the Court understood its authority to depart. I

3 have a great deal of respect for the Court. I know the Court

4 gave a great deal of consideration to those issues when they

5 were originally raised. But rereading the sentencing, I

6 believe the Court had almost a visceral reaction to the concep~

7 that somehow Mr. Carty could parlay his extreme error in

8 judgment of leaving the country, of fleeing to the Dominican

9 Republic, having the extra misfortune of getting caught,

10 detained pending some removal, I don't want to call it

11 extradition because I don't think that's what it was, and then

12 now he's before the Court saying you should lower my sentence

13 because this bad thing happened to me, with the idea that it

14 happened to him because of his own errors in judgment, his own

15 bad choices.

16 But what I want to say to the Court is that I think

17 the focus should really not be, when you're exercising your

18 discretion, not merely on what country this happened in, that

19 this happened to him in hi~ own country and it happened to him

20 in the country that he fled to, but I think the Court should

21 really focus on what in fact this indiv~dual went through at

22 that time, because if Mr. Carty, while he was a fugitive, had

23 provided some tremendous information to either his own

24 government or to the United States Government, had participated

25 in a rescue, had done something extraordinary, I would be

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bringing that to the Court's attention as well because I think

it's relevant and I think at this stage in the affairs of a

federal court that individuals that the Court may consider

sentencing beyond factors that occur within our own geographic

boundaries.

Having said that, I don't think it's particularly

7 relevant what country he was in when this happened. The type

5

8 of logic that says it happened to him in his own country and he

9 went there and maybe those are the standard conditions in his

10 country, that type of logic, if applied in the Navarro case

11 which is the only case that we wer~ aware of where there was an

12 actual downward departure for inhumane prison conditions or

13 deplorable prison conditions, the judge there could have said,

14 you know what, defendant, you had the bad choice of committing

15 your crime in New Jersey and unfortunately for you you got

16 locked up in a Union County jail. And really that's your

17 problem.

18 But while it was his bad choice to go back to his

19 country, he certainly had no control and did not bring upon

20 himself the prison conditions as they were. It wasn't as if he

21 was in a particular prison setting and then set a fire in the

22 jail and then was put into some worse condition. He was forced

23 to suffer in a way that I think if the Court were to put itself

24 in his shoes, might see a little bit more about what actual

25 psychological and physical suffering that is. That is being

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1 locked up in a small, overcrowded cell with other individuals

2 in a like situation who don't know what's happening one day to

3 the next, no access to legal assistance, no formal legal

4 proceedings commenced against him and Judge, the impact of that

5 is that if you're in jail, yes, he knows he's a fugitive but

6 does he know he's being held for an ,extradition or does he

7 think he's just being held like thousands of other people in

8 the Dominican Republic, that are in the report, with no access

9 to the legal system, without any real information about why

10 they're being held, what they're being held for, how long

11 they're going to be held, when they're going to see a judge.

12 That is a type of psychological torture. He's held in a

13 detention ce,nter which the information, although it's hearsay I

14 included it in the letter, was a prison that was built as a

15 short-term detention center, almost like a local precinct if

16 you will. The only unfortunate thing is it doesn't have any

17 windows. And he's there for approximately nine months. And

18 this is not to get to the most serious part of that and that is

19 food being provided at the whim and certainly unscheduled hours

20 of the prison staff, medical attention nonexistent, recreation

21 nonexistent.

22 And we're not talking about a week or two weeks or a

23 couple of days. We're not talking about somebody who is taken

24 out to court every now and then to see how his case is going,

25 we're talking about just being locked down for nine months.

1b9icars ag


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1 Mr. Carty stated in the presentence report way back before the

2 original sentence that as a result of that he lost 40 pounds

3 while he was in jail.

4 If the Court could attempt ,to do that and I know it's

5 a very difficult step, to put itself in Mr. Carty's shoes as he

6 sits in that c~ll, albeit in his own country, I think the Court

7 might be more inclined to exercise its discretion.

8 We provided the 'reports to the Court that in 1999 to

9 2000, at least three major organizations, Amnesty

10 International, the Human Rights Watch and the Organization of

11 American States were extremely critical if not outright

12 condemning of t~e prison system in the Dominican Republic.

13 I ask the Court to consider this information as to the

14 request for a downward departure and I also ask the Court,

15 because I believe we are here fpr resentencing, the sentence

16 was vacated, that if not that, that the Court consider

17 sentencing Mr. Carty to the lower end of the guideline range

18 which the Court already had sentenced him to. And I appreciate

19 the opportunity to appear before your Honor. Thank you.

20 THE COURT: .Mr. Carty, anything you wish to say?

21 THE DEFENDANT: The way I was in jail in my country

22 was inhuman. I was in a cell that was three by three at most

23 and I shared that with up to four people. There was no light,

24 I couldn't even read a newspaper. The food was horrendous.

25 The police treated us like animals. I had no right to see my

1b9icars ag


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1 family. I never saw a lawyer who could defend my case." I know

2 that I made a mistake in the past, your Honor, and it was even

3 worse because t ran away. But I have been trying to improve in

4 the time that I have been spending in jail now. And I am

5 . studying for the GED and I'm working.

6 When I was in Santo Domingo, in that time I lost 40

7 pounds. I had high blood pressure and I had medication but

8 they were not giving me those medications for me to take. lim

9 a human being who has made a mistake and I would hope for a

10 little bit of consideration.

11 This is all I have to say.

12 THE COURT: Thank you. Mr. Bsseks, anything you wish

13 to say?

14 MR. ESSEKS: Yes, your Honor. When we were here last

15 for the original sentencing, I did not ar.gue that the Court had

16 no discretion to grant a departure on these grounds; I argued

17 that the Court should not, and the principal bases for that

18 argument are the same now as they were then which are quite

19 simply, the defendant ran away to a place that he chose, that

20 is in fact his own country. What happened to him is very

21 unfortunate, and we're not quarreling about the facts, I don't

22 necessarily adopt all the facts, I do not adopt all the factors

23 cited by the defendant, although I do not present the Court

24 with contrary facts, but my point is that despite the

25 conditions that the defendant suffered under, those are not

1b9icars ag

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9 l~

1 conditions that the Court ought to rely in adjusting the

2 sentence here, for the reason that they are consequences

3 foreseeable and directly attributable to the defendant's own

4 conduct in seeking refuge in the Dominican Republic. And one

5 of the consequences is, if you get caught, you get treated as

6 the Dominican police and government treat everybody else.

7 Defense counsel has, Mr. Stewart has contended that

8 this wasn't an extradition. Well, certainly it wasn't an

9 extradition in the same sense that this country deals with

10 incoming extradition requests from foreign countries. But

11 extradition is a matter of the executive department in the

12 Dominican Republic and this is apparently the way they handle

13 extraditions. So there's nothing irregular about this

14 extradition as opposed to any other that I've been involved

15 with in bringing people back from the Dominican Republic.

16 Your Honor stated at the original sentence that

17 Mr. Carty was imprisoned in his own country under what the

18 Court had to assume, and I joined in that assumption, were the

19 stand~rd conditions of confinement in that country. And your

20 Honor concluded by stating that you did not believe that the

21 law was that such conditions warranted a departure and stated

22 nor should it be the law.

23 Your Honor. obviously can speak and will speak for

24 yourself. It is our position that on these facts, it should

25 not be the case that the defendant gets an adjustment to a

1b9icars ag


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1 sentence because of the admittedly unpleasant, inhumane

2 conditions under which he was imprisoned in his chosen refuge.

3 To the extent that the Court is interested or inclined to grant

4 a departure, I submit that the extent of it would logically be

5 some percentage at the most of the approximately nine months

6 that he was under those conditions. Thank you.

7 THE COURT: Thank you. Mr. Stewart, any legal reason

8 why sentence should not now be imposed?

9

10

MR. STEWART: Not that I know.of, your Honor.

THE COURT: Ask the defendant to rise, please. Before

11 we begin with the sentence, let me note that the case as I

12 indicated is here on remand from the Second Circuit and I want

13 to, in order to focus this sentence, recite from the Second

14 Circuit decision. The Second Circuit said "We agree with the

15 defendant that the Court may have misapprehended its authority

16 in this case." And the Second Circuit went on to say that "the

17 Court's use of the phrase 'under no circumstances' suggests

18 that the Court may have believed that presentence conditions of

19 confinement at least when such confinement occurs in the

20 defendant's own country can never serve as the basis for a

21 downward departure. This is not correct."

22 Therefore I want to make clear that my decision today

23 recognizes the law as established by the Second Circuit in this

24 case and will not be based upon any such consideration, that

25 is, a consideration that would include under no circumstance

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1 maya defendant's conditions of confinement in his own country

2 serve as a basis for a downward departure. Put that out o~

3 your mind. I eliminate that.

4 And I've also read carefully the submission made by

5 Mr. Stewart on November 6, 2001 which includes the materials

6 that Mr. Stewart has referred to, including the report of the

7 Organization of American States, InterAmerican Commission on

8 Human Rights, the segment of the annual report of Amnesty

9 International in 1999 and the segment from the annual report of

10 Amnesty International for 2000 and the pages from the Human

11 Rights Watch World Report regarding the Dominican Republic for

12 1998. I've read all of those materials.

13 Having read all of those materials and having given

14 consideration to the factors that have been raised here and to

15 what was stated by the Second Circuit to this Court, I now

16 state the following.

17 The defendant, Enrique Carty, has pled guilty without

18 benefit of a plea agreement to Count 1 only of 95 Cr. 973 to

19 the crime of conspiracy to violate the federal narcotics laws

20 in violation 6f Title 21, United States Code, Section 846,

21 which is a Class A felony. He has also pled guilty as charged

22 under 95 Cr. 980 to Count 1, to the crime of conspiracy to

23 violate the federal narcotics laws in violation of Title 21,

24 United States Code, Section 846, a Class A felony, and to Count

25 2 of that indictment, to'the crime of conspiracy to violate the

Ib9icars ag


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1 federal narcotics laws in violation of Title 21, United States

2 Code, Section 846 which i~ a Class B felony.

3 The base offense level for these crimes as set, forth

4 in paragraphs 30-31 of the presentence report is as follows.

5 Count 1 of the indictment, 95 Cr. 973, which charges the

6 violation of 21 United States Code Section 846, which I just

7 referred to, and Counts 1 and 2 of information 95 Cr. 980,

8 which also charge violation of Title 21 United States Code

9 ,Section 846, are grouped; that is, Count 1 and Count 2 of

10 95 Cr. 980 are grouped with Count 1 o,f 95 Cr. 973, all pursuant

11 to guideline section 2D1.2(d). And the result of that is that

12 the sentence is predicated on the basis, or largely on the

13 basis, of the quantity of substance involved, ,or some other

14 measure of aggregate harm, and the offense behavior i's ongoing

15 or continuous. The result of all of that is that the two

16 indictments, the counts in the two indictments, are now

17 grouped.

18 In that connection, with that grouping, the guidelines

19 for violation of 21 U.S.C. 846 are found in Section 2Dl.l. The

20 defendant's criminal activity as he congeded invo+ved the

21 receipt and the distribution of in excess of 1.5 kilograms of

22 crack cocaine in North Carolina and at least five kilograms and

2'3 approximately 116 grams of heroin in New York. When these

24 amounts of narcotics are converted into marijuana, their

25 aggregate weights is approximately 30,300 kilograms of

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1 marijuana, and under the drug quantity table, 2D1.1(c) (1) the

2 base offense level is 38.

3 The presentence report, as I indicated earlier in the

4 prior sentence, recommended a four-level increase for the

5 defendant's role in the offense and described him as a

6 leader/organizer.

7 The government agreed that the defendant should not

8 receive a four-level organizer/leader adjustment but contended

9 that that adjustment should be reduced to a two-level

10 adjustment and the government contended that the defendant,

11 although not the level of leader or organizer that is described

12 in the presentence report, nonetheless had a leadership or

13 supervisory role that would support a two-level rather than

14 four-level enhancement and the government conceded the

15 defendant did not supervise an organization that had five or

16 more participants or was otherwise e·xtensi ve.

17 As I read the presentence report, as I stated in the

18 earlier sentence, I did not find that there was a basis for any

.19 role adjustment here. It is difficult to find any supervisory

20 or leadership role or other role that will support an upward

21 increase in the offense level, therefore I declined and I do

22 now decline to impose an increase on that basis. So the base

23 offense level of 38 remains the base offense level.

24 Parenthetically, it should be noted that the

25 presentence report, having made various calculations, concluded

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1 that the defendant was at a total offense level of 39, Criminal

2 History Category III, and that would account for guideline

3 provisions of 324 months to 405 months, and the recommended

4 sentence was 324 months with consideration for time served.

5 I'm pointing that out because I want you to know that I've

6 given serious consideration to the arguments made by the

7 defendant, the arguments that were made earlier and the

8 arguments that were made on the present motion for a downward

9 departure. And I've considered all of those.

10 As I stated earlier and I state again, there are

11 however certain other issues that have to be addressed. First

12 is the question of whether the defendant who failed to appear

13 has engaged in conduct which eliminated his entitlement to a

14 three-level ,reduction for acceptan'ce of responsibility and

15 whether the defendant is now to be subjected to a two-level

16· increase for having obstructed justice. And the facts with

17 regard to this matter, as I stated earlier and I'm repeating

18 today, are as follows.

19 . Mr. Carty pleaded guilty before this Court on November

20 28, 1995 to the two-count information 95 Cr. 980 which I just

21 referred to. And he also pleaded guilty to an indictment in

22 the Western District of North Carolina which was transferred

23 here pursuant to the Federal Rules of Criminal Procedure and

24 was renumbered 95 Cr. 973. These pleas were entered into

25 pursuant to a cooperation agreement with the government and on

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1 the government's consent, Mr. Carty was released on bail

2 conditions.

3 The bail conditions also included certain travel

4 conditions. It permitted Mr. Carty to travel to the Southern

5 and Eastern Districts of New York, except for agent-supervised

6 trips to the Western District of North Carolina. Following his

7 release on bail, the government concedes that Mr. Carty

8 Assisted the DEA in a variety of cases. However, there did

9 come a time when the government le~rned that Mr. Carty was no

10 longer in the United"States and the government, in fact,

11 learned that Mr. Carty was in the Dominican Republic.

12 The DEA agent called Mr. Carty who according to the

13 DEA agent stated that Mr. Carty said that he had traveled to

14 the Dominican Republic because his mothex passed away and he

15 would be returning to New York shortly. Later it was contended

16 that it was his father who passed away and that that was a

17 triggering event for Mr. Carty leaving the United States. I

18 don't think it's material whether it was his mother or father,

19" although that point was argued by the government in its

20 submission.

21 At the end of April 1998, the DEA agent again called

22 Mr. Carty, Mr. Carty having earlier said that he would be

23 returning to New York shortly, and Mr. Carty stated that he was

24 waiting for friends to get him money so he could fly back to

25 New York. Subsequently, both the cellular telephdne number for

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Mr. Carty in the Dominican Republic and the telephone number t

Mr. Carty's number in New Yorkt were disconnected. Mr. Carty

did not return to New York.

16

In May of 1999 t Mr. Carty was l~aving or attempting to

leaving the Dominican Republic to fly to a neighboring island

but was arrested at the Santo Domingo airport based on a United

States arrest warrant and thereafter Mr. Carty was returned to

this country by the Dominican Republic in February of 2000 and

arrived in the Southern District of New York in March of 2000.

The net of that is that Mr. CartYt notwithstanding his

cooperation agreement and his having pled guilty and having

accepted responsibilitYt had now not only breached the terms of

his cooperation agreement t but he also fled. It is difficult t

as I stated earlier t to conclude otherwise than that Mr. CartYt

whatever reason he now gives or then gavet fled this country

and returned to his native country of the Dominican Republic.

It was there that he was apprehended and held and then

imprisoned for these nine months that we've referred to and

thereafter was returned to the United States.

Let me also say that I do accept that conditions in

the prison in Santo Domingo were as set forth in the various

reports that were submitted by the defendant under cover of the

letter of Mr. Stewart November 6 t 2001, I accept that they were

severe and substantially substandard conditions and that

Mr. Carty was required to endure something that waSt in my

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1 judgment, not humane.

2 However, to return to the issues at hand, before

3 getting to that issue, the result of all of the foregoing is

4 that Mr. Carty was then confronted with the loss or the

5 potential loss of the three-level reduction that he would

6 easily have had for his acceptance of responsibility. And the

7 government, in fact, contended tfuat not only should Mr. Carty

8 lose that three-level reduction for acceptance of

9 responsibility but the government moved this Court for a

10 two-level increase in the defendant's offense level for

11 obstruction of justice pursuant to Guideline Section 3Cl.1.

12 The Court noted at the time of the earlier sentence~ and I do

13 today repeat, the application notes to guideline section 3El.l

14 state that "while entry of a guilty plea and admission of

15 additional relevant criminal conduct will constitute

16 significant evidence of acceptance of responsibility, this

17 evidence may be outweighed by conduct of the defendant that is

18 inconsistent with such acceptance of responsibility." A

19 defendant who enters a guilty plea is not entitled to an

20 adjustment under this section as' a matter of right, which is

21 set forth in the application note 3 of guideline 3D1.1.

22 As I stated at the initial sentencing and I rep~at

23 today, the Court has given long consideration to the question

24 of whether the defendant has accepted responsibility for his

25 crimes. I could then have found, at the earlier sentence, that

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1 the defendant by virtue of his obstruction of justice, was not

2 entitled, in my discretion, to this three-level reduction. But

3 I stated at the earlier sentence and I'm repeating today that

4 having heard the defendant and his having accepted

5 responsibility for the more than one and a half kilograms of

6 crack cocaine and having responsibility for the remainder of

7 his crime, the crimes to which he has pled guilty, and

8 notwithstanding his flight for which he presents still another

9 question, I stated then and I am today still of the view that

10 the defendant is entitled to the reduction for acceptance of

11 responsibility and I then earlier and I do today give him that

12 three-level reduction for acceptance of responsibility. So I

13 want you to understand that I've exercised my discretion now in

14 two different areas favorable to the defendant and understand

15 the totality of his circumstances.

16 The Court earlier stated and I rep'eat today, however,

17 the defendant also is subject to' Guideline Section 3C1.1 and to

18 the application note which sets forth that an example of

19 conduct to which the obstruction of justice enhancement

20 enhancement is applies is escaping or attempting to escape from

21 custody before trial or sentencing, or willfully failing to

22 appear as ordered for a judicial proceeding. And this is set

23 forth in application note 4(e) to Guideline Section 3C1.1.

24 I stated earlier and I state again today, the

25 conclusion is inevi~able, and I so find, that the defendant

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1 fled, that is, the escape or attempt to escape from custody

2 before trial or sentencing, he willfully failed to appear. He

3 did so in the face of what is now a clear and overwhelming

4 record that he had no justification for' doing so because the

5 DEA agent who spoke to him by telephone in effect said that

6 they were looking for him and that he was to return and

7 Mr. Carty said that he would return but he didn't. He didn't

8 return until he was apprehended, until he w~s incarcerated,

9 then ordered or directed to be, and in fact returned by the

10 government of the Dominican Republic. Under those

11 circumstances I found and. I do find that he has obstructed

12 justice and he is therefore subject to the two-level

13 obstruction of justice enhancement.

14 The reduction of the three levels from the base

15 offense level of 38 for acceptance of responsibility brings him

16 to 35 offense level plus two levels for his obstruction of

17 justice, places him at the offense level of 37 and I then found

18 and I do now find that he is at total offense level 37. As I

19 pointed out earlier, the presentence report recommended that he

20 be placed at offense level 39.

21 His Criminal History Category as we have agreed is

22 III. That criminal history category is spelled out in the'

23 presentence report and I adopt that finding and rely on the

24 presentence report in that regard.

25 But he's also subject to two criminal history points

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20

1 which put him in Criminal Histary Categary III based an the

2 fact that he cammitted these crime~ while he was under

3 supervisian. He was under supervisian in 1992 and an his

4 allacutian canceded that he was invalved in the North Caralina

5 canspiracy fram 1994 and the New Yark canspiracy fram 1992.

6 In any event,. the recard is clear that he is carrectly

7 in Criminal Histary Categary III, Guideline level 37, Criminal

8 Histary Categary III, he is in a guideline imprisanment range

9 af 262 to' 327 manths. His guideline supervised release range

10 is three to' five years. His guideline fine range is 25,000 to'

11 ten millian dollars. There's a mandatary special assessment af

12 50 dallars per caunt, and he has pleaded to. three caunts far a

13 tatal af 150 dallars. The defendant's abjectians were duly

14 nated and I do' nate them even taday. And naw he seeks the

15 dawnward departure.

The recard, in arder to. be clear, reflects that

invalved in the cacaine amaunts that he's pleaded to. and

fact, even during these praceedings, he argued that he

16

17

18

19 transparted eight ar/nine kilagrams af pawdered co. caine

20 Narth Caralina. In accardance with what the Caurt faund

he

in

to.

21 previausly, I do' cantinue to. find he's also' subject to. and

22 respansible far distributing 116.86 grams af herain as set

23 farth in the presentence rep art paragraphs 18-25 ..

24 Mr. Carty argued in the earlier praceeding and

was

25 Mr. Stewart has referred to. including all af this in the recard

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21

1 'so I'm referring to it here, he argued that his co-conspirator,

2 who is sometimes referred to as his brother, Leoncio Wade,

3 conducted most of the narcotics transactions. This is

4 Mr., Stewart's contention. But as I said earlier anq do

5 reiterate, the law is also clear that Mr. Carty, a

6 co-conspirator, is also liable for Mr. Leoncio Wade's narcotics

7 transactions through the conspiracy in which they were both

8 involved, and a conspirator is responsible for the foreseeable

9 acts of his co-conspirators in furtherance of the conspiracy.

10 And Mr. Carty, of course, is therefore held responsible for all

11 of the activity jointly undertaken in that criminal conspiracy.

12 In light of that concession, the concession which he

13 made in his allocution and repeated, that the heroin conspiracy

14 accomplished distribution of a hundred grams; he is properly

15 chargeable with that amount and that is all included in the

16 computation which led to the initial base offense level of 38.

17 The defendant also sought a downward dep~rture for

18 substantial assistance to the government and as I stated

19 earlier and reiterate, that downward departure was denied for

20 the simple reason first that it is the law of the Second

21 Circuit that in order for a defendant to be entitled to such

22 departure under Guideline Section SKl.l, a government motion is

23 required, and that no departure is in order based solely on the

24 defendant's argument that he assisted the government not

25 withstanding the fact that he breached the cooperation

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22

1 agreement by fleeing as he did. In this case, the government

2 has made no motion and there is therefore no basis for the

3 Court to find that the defendant is entitled to the downward

4 departure under Section 5K11.and I denied it earlier and do

5 deny it today.

6 The defendant also sought a downward departure on the

7 grounds that his cooperation or"assistance to the government

8 broke the log jam and resulted in the prosecution of other

9 defendants. As I stated earlier and I repeat today, I'm not

10 going to repeat all that I said on that subject earlier, the

11 record was abundantly clear that Mr. Carty's contentions were

12 without foundation and I found, after setting forth all the

13 circumstances in North Carolina and here of the various

14 defendants who pleaded and cooperated etc., that even if the

15 defendant established that his plea and assistance did not

16 break any log jam i~ North Carolina and no departure would have

17 been warranted, I, in any event, having "reviewed the record,

18 declined in my discretion to depart on that basis.

19 Finally, we reach the issue which is now presented by

20 the Second Circuit's remand today, that is, Mr. Carty urges

21 that he is entitled to a downward departure for prison

22 conditions that occurred in the Dominican Republic while he was

23 awaiting his transfer on his arrest in these cases. Having

24 reviewed the entire record and having given consideration to

25 all that has been submitted, and I recognize fully my authority

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1 to downwardly depart on this ground, that is, I agree with the

2 Second Circuit that the Sentencing Commission has not

3 categorically proscribed consideration of this factor and that

4 conditions of presentence confinement, in fact, as the Second

5 Circuit pointed out, may be so severe as to take a particular

6 case outside the heartland of the applicable guidelines under

7 Koon, I now have reviewed the entire record recognizing that I

8 do have such authority and having reviewed the record, which

9 includes the fact that the defendant was involved in a very

10 serious series of crimes over a period of years involving

11 substantial quantities of narcotics in North Carolina and in

12 New York with others, that the defendant, who was given the

13 opportunity to enter into an arrangement that would have given

14 him potentially a 5K1.1 letter, fled to the Dominican Republic,

15 he willfully acted in a way that supported a finding of

16 obstruction of justice, a finding which the Second Circuit has

17 already held to be correct, I find that in the totality of

18 these circumstances and recognizing the defendant has gone

19 through that hardship, but I also found earlier and I do find

20 today that he should be certainly given credit for the time he

21 served while he was incarcerated in the Dominican Republic,

22 that in my discretion, and recognizing my full authority, I

23 decline to grant him. a downward departure on this basis. But I

24 do again give him credit for the time he served and will

25 indicate that to the Bureau of Prisons. I'm referring to the

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1 time that,he served in the Dominican Republic prison.

2 The bottom line of all of this is that I decline in my

3 discretion to grant him a downward departure as a result of his

4 incarceratibn with adverse conditions which I do fully

5 recognize which took place in the Dominican Republic and

6 accordingly I do now sentence the defendant as I indicated

7 earlier and I repeat today to the middle of th'e guideline range

8 of 262 to 327 months, and I remand the defendant to the custody

9 of the Bureau of Prisons for a term of 290 months to be

10 followed by a term of five years of supervised release.

11 Supervised release is to be subject to the mandatory conditions

12 that the defendant not commit another federal, state or local

13 crime, that the defendant not illegally possess a controlled

14 substance, the defendant shall not possess a firearm or

15 destructive device, the defendant shall refrain from the

16 unlawful use of controlled substances, the defendant shall

17 submit to one drug test within 15 days of his placement on

18 supervised release and at least two unscheduled drug tests

19 thereafter as directed by the probation officer. He's also

20 subject to the standard conditions of supervision 1-13 with a

21 special condition that the defendant comply with any and all

22 directives of the INS regarding deportation proceedings, and

23 that the defendant'participate in an educational and/or

24 vocational program.

25 The defendant is to report to the nearest Probation

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1 Office within 72 hours of his release from custody. The

2 supervision of his supervised release will be conducted in the

3 district of his residence. I am not imposing a fine because I

4 do not find that he has the ability to pay a fine and as I

5 indicated earlier, the fine range is 25,000 to ten million

6 dollaEs and I do not find that he has the ability to pay even

7 the low end of that fine range, but I do impose the mandatory

8 special assessment of 150 dollars which is 50 dollars for each

9 count.

10 My sentence here is imposed for the reasons that I

11 indicated earlier and which I repeat. The sentence is in

12 recognition that crimes that the defendant has been involved

13 are very serious crimes. The sentence is designed to deter

14 this defendant and others and to protect the public. As I

15 indicated earlier, there were no outstanding counts. I again

16 advise the defendant that he has a right to appeal this

17 sentence or any part thereof and should he determine to do so,

18 Mr. Stewart, I ask you to tell the defendant if you're

19 available, if so, again to as'sist him in any such appeal, and

20 if you are not an available and he cannot afford 'counsel, I

21 will appoint counsel to represent him on any such appeal free

22 of charge.

23 That is the sentence of the Court. Anything further?

24

25

MR. STEWART: No, your Honor.

THE COURT: Mr. Esseks?

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1 MR. ESSEKS: No, your Honor.

2 THE COURT: Thank you.

3 (Record closed)

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case 1:09-cr-00512-lap document 29 filed 02/09/11 page 1 of 42 · 2016. 3. 9. · case...

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